Quiroga v. EL Pistolon II, Ltd.

          On appeal from the 93rd District Court of Hidalgo County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          MEMORANDUM OPINION

          GREGORY T. PERKES JUSTICE

         Appellee El Pistolon II, Ltd. obtained a default judgment on its breach of contract claims against appellants Dolores Quiroga and La Palanca, LLC d/b/a Dickey's Barbeque Pit (Dickey's). The trial court denied appellants' bill of review. On appeal, Dickey's contends that service was defective because it was not served at the address designated for its registered agent. Both appellants contend that the trial court erred by applying the wrong evidentiary standard to the bill of review. We affirm.

         I. Background

         On January 17, 2012, appellee filed a lawsuit against appellants to recover damages for breach of a commercial lease agreement. Dolores Quiroga allegedly signed the lease agreement as the authorized agent of Dickey's and as personal guarantor. The next day, the Hidalgo County District Clerk issued a citation to be served on Dolores Quiroga at 1711 Lauren Lane, Mission, Texas 78572.

         On February 14, 2012, the trial court granted appellee's motion for substituted service of process. The trial court ordered that service be had on:

Defendant DOLORES QUIROGA by leaving a true copy of the citation and the attached Petition by attaching said citation and petition on the front door of Dolores Quiroga's usual place of abode at 2903 Santa Olivia, Mission, Texas 78572-7602 and by any other manner that will be reasonably effective to give the Defendant notice of suit; and

Defendant LA PALANCA, LLC D/B/A DICKEY'S BARBECUE by leaving a true copy of the citation and the attached petition by attaching said citation and petition on the front door of La Palanca's registered agent, Dolores Quiroga's usual place of abode at 2903 Santa Olivia, Mission, Texas 78572-7602.

         An officer's return was filed several days later stating that Dolores Quiroga was served "in person" at the Santa Olivia address.

         Approximately fourteen months later, on April 5, 2013, the trial court granted appellee's motion for default judgment. Since the damages were unliquidated, the court considered evidence on damages and awarded appellee the sum of $432, 819.13.

         On October 17, 2016, appellants filed their petition for bill of review, which was assigned to the same trial court that granted the default judgment, but under a new cause number. Appellants acknowledged that service of process was executed in compliance with the order for substituted service but contended that: (1) neither party received notice of the lawsuit; (2) each had a meritorious defense because appellee mitigated its damages after the judgment; and (3) appellee knew of but failed to serve the parties at their correct addresses.

         More specifically, Dickey's acknowledged that Dolores Quiroga was its registered agent but asserted that the correct address for such purposes was 1711 Lauren Lane, Mission, Texas 78572, not her purported home address at 2903 Santa Olivia, Mission, Texas 78572-7602. Dolores Quiroga implicitly denied that the Santa Olivia address was her actual home address, alleging "[appellee] knew the whereabouts of [her] residence and or persons who knew her whereabouts but wholly failed to serve her."

         Attached to appellants' petition were copies of the order granting substituted service, a citation addressed to Dolores Quiroga individually and the corresponding officer's return, and the default judgment. Also attached to the petition was an affidavit by Dolores Quiroga in which she attests that she "was never given a copy of the citation ...